Cho High 2012Gu4595 (2013.06)

Since the key land was transferred after the lapse of three years from the date of designation of the reserved land for replotting, it does not constitute one of the own farmland for at least eight years.

When compiling the fact of notification of the designation of a land scheduled for substitution under the Land Readjustment Projects Act, it is deemed that the land at issue is transferred after three years from the date of designation of the land scheduled for substitution, so the disposition agency did not err in excluding reduction or exemption for eight years.

Article 69 of the Restriction of Special Taxation Act

2013Guhap10535 Revocation of Disposition rejecting capital gains tax rectification

KimA

Head of North Daegu Tax Office

October 16, 2013

December 13, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

On May 7, 2012, the defendant's rejection disposition against the plaintiff is revoked.

1. Details of the disposition;

"A. On November 12, 1987, the Plaintiff completed the registration of ownership transfer on the ground of sale on the 7th of the same month with respect to OO2, O2, O2, O2, O2, O2, O2, O2, 1381,00 square meters (hereinafter "the land in this case"). After that, the land in this case was incorporated into a zone for DD2 (hereinafter "the project in this case") around 1996, and "B, the Plaintiff, on December 8, 201, sold the land in this case to KimB, and PCC on January 11, 2012 (hereinafter "the sale in this case"), and the registration of ownership transfer was completed on March 9, 201, the transfer income tax was reported and paid on March 1, 201, and the Plaintiff had already completed the transfer of the land in this case to the Defendant on the ground that the transfer of the land in this case had already been completed prior to the completion of the transfer disposition.

D. On May 7, 2012, the defendant rejected the plaintiff's request for correction on the following grounds (hereinafter "the disposition in this case"). The land in this case is subject to Article 69 of the Restriction of Special Taxation Act and Article 66 (4) 2 of the Enforcement Decree of the same Act, since it is farmland for which three years have passed from the date of designation of reserved land for replotting ( July 19, 2005) and it is not subject to reduction or exemption of capital gains tax on self-arable farmland, the defendant's request for correction is dismissed.

○ Status of the land readjustment project in order to implement a land readjustment project

-195: Designation of reserved land for replotting

-196: Authorization for project implementation;

- On July 13, 2005: Authorization of a plan for the land readjustment and rearrangement project for the public interest parcels;

- On July 19, 2005, notice of designation of land scheduled for replotting. It is clearly stated that notice of land scheduled for replotting is given in accordance with Article 56, paragraph 3 of the Land Readjustment Project Act.

E. The Plaintiff filed an objection and filed an appeal on October 23, 2012, but the Tax Tribunal dismissed the appeal on February 6, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 through 3, the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

"1) On July 19, 2005, the actual contents of "the notification of the designation of the land substitution plan, which was sent by the DD District Consolidation and Rearrangement Project Association (hereinafter referred to as the "Corporation") to its members on the land substitution plan do not include the designation of the land substitution plan, but also the notification of the authorization matters notified by the FF-Gun Office to its members on the land substitution plan, and no separate land substitution is designated on the instant land thereafter. Therefore, the instant land does not fall under "the land substitution plan, other than the farmland, was designated before the land substitution is excluded from capital gains tax pursuant to Article 66 (4) 2 of the Enforcement Decree of the Restriction of Special Taxation Act." In addition, as long as the land of this case was not designated as the land substitution plan and the land substitution plan were not designated, the land category of the instant land is still farmland as before the date of the designation of the land substitution plan. Since the land transfer after the commencement of the land creation project and the land

"2) In the instant lawsuit, the Defendant added "the Plaintiff did not directly cultivate the instant land when it was in possession of it," and it is not allowed to do so for a separate reason for which the Defendant’s ground for original disposition is not recognized as identical to factual relations." Even if the foregoing ground for disposition is allowed, the Plaintiff’s additional ground for disposition is not acknowledged. However, since the Plaintiff, after acquiring the ownership of the instant land on November 12, 1987, resided in an OOO-gun No. 1391, U.S. O.O.O.O.O.O. 1391, an area adjacent to the instant land until the commencement of the instant project on May 22, 197, 197, and thus, it was around 10 years ago, the said ground for

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Although the project of this case was commenced on February 6, 1995, on September 23, 1996, the decision of the project plan (Seoul Metropolitan City Notice No. 1996-201, Sept. 23, 1996), and on May 22, 1997, the construction was suspended on August 22, 1997 due to the management difficulties of EE, Inc., a Si Corporation.

"2) The instant association made on January 5, 2005 the public inspection period from January 17, 2005 to February 3, 2005 the public inspection of the project implementation plan and the plan for planned land substitution plan for its members. On January 12, 2005, the instant association made a public inspection of the project implementation (hereinafter referred to as the “public inspection and announcement of this case”) on the Yong-Namnam Island, and 3) on May 9, 2005, the instant association made an application for authorization for designation of planned land substitution plan (No. 05-19) with the FF head of the FF Gun on May 9, 2005, and the parts concerning the instant land in the protocol of planned land substitution attached to the above application are as follows:

See Table 4 see Court Decision 4

"4) On July 13, 2005, the FF head of the Daegu Metropolitan City FF Gun (hereinafter referred to as the "FF head of the FF Gun") authorized the above application for authorization of a land substitution plan with the following contents, and the land creation corporation was resumed following the authorized land substitution plan change."

○ Title: Authorization of a land substitution plan for a land readjustment project for land consolidation and rearrangement project;

○○ Daegu Metropolitan City Public Notice No. 196-201, 96-202 ( September 23, 1996) is authorized to implement a land readjustment project in accordance with Article 47(1) of the Land Readjustment and Rearrangement Projects Act, with respect to land owners and interested parties subject to authorization for a land substitution plan as follows pursuant to Article 47(1) of the Land Readjustment and Rearrangement Projects Act, the main time is to ensure that there is no civil petition against the following land owners and interested parties:

○ Date of authorization of land substitution plan: July 13, 2005

○ Authorization Conditions: The location, area, effective date, etc. of the land scheduled for substitution shall be notified to the landowner and lessee pursuant to Article 56 of the Land Readjustment Projects Act.

"5) On July 19, 2005, the instant cooperative notified (hereinafter referred to as the “instant notification”) that it was authorized by the FFF-gun Urban Construction and-5149 ( July 13, 2005), along with the designation protocol of the land substitution plan, to the members of the instant cooperative on July 19, 2005, along with the title of “the notification of the designation of the land substitution plan site.” In accordance with Article 56(3) of the Land Readjustment and Rearrangement Project Act, some of the members notified (hereinafter referred to as “the instant notification”) of “the wind of FF-gun City Construction and the wind of F-5149 ( July 13, 2005).” On the other hand, from November 2009, some of the members of the instant cooperative filed an application for use with the instant cooperative and started the use of the land substitution site. On the other hand, the Plaintiff sold the instant land to B, etc. on May 18, 2011.

7) In addition to the instant notification, the instant association did not have publicly announced and notified the designation of the reserved land for replotting. Article 38 of the articles of association of the instant association provides for the designation of the reserved land for replotting as follows.

Article 38 (Designation and Use of Reserved Land for Replotting) (1) Any implementer shall designate a land scheduled for replotting so as to exercise the same rights as the previous land in lieu of the previous land by the date of public announcement of a land substitution disposition. In this case, any implementer shall publicly announce it to the owner and notify the owner thereof in writing, and the same shall also apply to any alteration thereof: Provided, That the same shall not

(2) Anyone who has been designated as a planned land substitution area or any interested person may use the land as a planned land substitution area to the extent not hindering the project implementation

8) On March 15, 2013, a land substitution surveying was conducted for the boundary classification by land owner on the instant project site, and around December 2013, it is planned to complete construction works and take a disposition of replotting. The land substitution area of the instant land was 720.5 square meters at the time of authorization of a land substitution plan on July 13, 2005, and the land substitution area according to the result of a stuff survey on March 15, 2013 is 720.4 square meters.

[Ground of recognition] Unsatisfy, Gap evidence 3 through 6, 9, 10 evidence, Eul evidence 4 through 6, 11 and 12 evidence (including each number), witness KimGG testimony, the purport of the whole pleadings

D. Determination

1) Determination as to whether to designate the reserved land for replotting

A) Articles 56(1) through (3) and 12(1) of the former Land Readjustment Act (amended by Act No. 6252, Jan. 28, 200) provide that when it is necessary to implement the land rearrangement project, the implementer may designate the land as a planned land substitution. In this case, the relevant landowners and persons with rights of lease, etc. shall notify the location and area of the planned land substitution and the time when the designation becomes effective, and the related documents shall be made available for public inspection for 14 days. Article 57(1) provides that where the pre-determined land is designated, the landowner and persons with rights of lease, etc. with regard to the previous land shall exercise the same rights as that of the pre-existing land from the effective date of the designation of the planned land substitution to the date when the replotting plan is announced, and Article 57(2) provides that the implementer may separately determine the date of the use or profit-making of the land when the reserved land is designated pursuant to the provisions of Article 56(1).

Meanwhile, Article 38(1) of the articles of association of the instant association provides that an implementer shall designate a land substitution plan so that he/she can exercise the rights consistent with the previous land and the previous land by the date of the public announcement of a land substitution disposition on behalf of the previous land. In such cases, the implementer shall publicly announce it and notify its owner in writing, and the same shall also apply to any alteration, but the same shall not apply to any minor alteration. Article 38(2) provides that a person who has been designated as a land substitution plan or interested person

B) In light of the following circumstances revealed in light of the above facts and relevant laws, it is reasonable to deem that the instant notification does not merely constitute notification of the authorized matters of a land substitution plan, but also constitutes notification of a land substitution plan. Contrary thereto, it is difficult to believe that some of Gap evidence No. 8, witness KimG testimony is insufficient. Therefore, the Plaintiff’s allegation that the land substitution plan was not designated is groundless.

① The instant association prepared a protocol of land substitution for the instant project area, including the instant land, and filed an application for authorization of the land substitution plan with the FF head of the FF. The instant protocol of land substitution for replotting is specified in the location and size of the land substitution for replotting, and the FF head of the FFGun specified the notification of the land substitution as the conditions for authorization

② According to the FF head of F Gun’s authorization, the instant association sent the instant notification to its members, including the Plaintiff, along with the protocol of land substitution for replotting. From November 30 to 50, 2009, more than 50 members exercise their rights, such as using, gaining profit from, etc. the land substitution in the protocol of land substitution for replotting. ③ Articles 56(2) and 12(1) of the former Land Readjustment and Rearrangement Project Act and Article 38(1) of the articles of association of the instant association provide that the project implementer shall make a public inspection and announcement for 14 days, and notify the owner thereof in writing. On November 2009, the instant association does not have any fact that some members, other than the instant public inspection, announcement, and the instant notification, separately available for public inspection, announcement, or notification.

④ Although the instant members filed an application for use with a cooperative to use the reserved land for replotting and obtained approval for use, such approval cannot be deemed as falling under the procedure for public perusal, public announcement, and notification in accordance with the designation of reserved land pursuant to the former Land Readjustment and Rearrangement Project Act and the articles of incorporation of the instant association.

⑤ Even if the land size of the instant land was changed to 0.1 square meters after the public inspection and announcement of the instant case, this is merely a minor change, and thus the separate public inspection and announcement procedure is unnecessary.

(6) The meaning of "the date of the designation of the reserved land for replotting" in the main sentence of Article 66 (5) 2 of the Enforcement Decree of the Restriction of Special Taxation Act is limited to "after the reserved land for replotting is actually usable as a site for which construction is actually possible", and the preliminary determination is made on the premise that there

A) Even if the land category entered in the public register is farmland, that is not actually cultivated as of the date of transfer cannot be deemed farmland as of the date of transfer, regardless of whether it is by the landowner’s own person or by another person, and it cannot be deemed farmland as of the date of temporary closure, and thus, it cannot be deemed as farmland as of the date of transfer. In addition, in determining whether farmland is farmland as of the date of transfer, Article 66(5)2 of the Enforcement Decree of the Restriction of Special Taxation Act applies to cases where a land, other than farmland, is designated as a land as a land reserved for replotting and becomes unable to cultivate by the implementation of the Land Creation Corporation, and thus, it cannot be applied unless the land reserved for replotting is not designated (see Supreme Court Decision 2006Du13

B) As seen earlier, despite the commencement of the instant project on May 2, 1997, the construction was suspended due to the business difficulties of EE, a contractor, on August 22, 1997; the FF head of F Gun authorized the instant land substitution plan of the instant association on July 13, 2005; the land creation corporation was resumed in accordance with the land substitution plan drawings on the same day; the instant association notified its members on July 17, 2005, along with the designation report of the land substitution plan; some of its members were using the instant land substitution plan after filing an application for use with the instant association from November 2009; while the Plaintiff was unable to cultivate due to the land creation works in accordance with the instant project, the Plaintiff can recognize the fact that the instant land was sold to OOOwon, construction works and replotting scheduled on December 28, 2013.

According to the above facts of recognition, the suspension of cultivation due to the land-building project implemented in accordance with the land-building and rearrangement project for the purpose of building a housing site cannot be deemed a temporary suspension condition, barring any special circumstances. Therefore, the land in this case cannot be deemed a farmland as of the date of transfer, and if the land, other than farmland, did not have designated as the land reserved for replotting, Article 66 (4) and (5) of the Enforcement Decree

Therefore, since the instant land does not fall under farmland as of the date of capital gains tax reduction and exemption, even if the said land was not designated as a land scheduled for replotting, the Plaintiff’s assertion is without merit, and the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.